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Opinions May 31, 2011 ILD

The following opinion was posted after IL deadline Friday:
Indiana Tax Court
Rent-A-Center East, Inc. v. Indiana Dept. of State Revenue
49T10-0612-TA-106
Tax. Denies the Department of State Revenue’s motion for summary judgment and grants it in favor of RAC East. The department has failed to designate any facts to show it complied with Indiana Code 6-3-2-2(p), so it hasn’t made a prima facie case that it is entitled to judgment as a matter of law regarding whether the department consider alternatives to assessing tax based on a combined return. Remands to the Department of State Revenue for actions consistent with the opinion.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Dennis Block v. Mark Magura
64A05-1012-PL-752
Civil plenary. Reverses summary judgment for Magura on Block’s lawsuit filed after Magura didn’t complete the purchase of Block’s interest in a partnership. The letter of intent is an enforceable contract because it contains the essential terms of the parties’ agreement and expresses their intent to be bound. Remands for summary judgment in favor of Block as to Magura’s liability for breach of contract and to conduct further proceedings with respect to damages.

Abram Coleman, Rhonda Coleman, and Jerry Wayne Coleman v. Cynthia Ann Coleman
63A01-1009-PL-500
Civil plenary. Reverses judgment in favor of Cynthia Coleman awarding her $20,000 in damages and $11,097 in attorney fees on her unjust enrichment claim. There is insufficient evidence to support a judgment against the Colemans as such a claim requires a plaintiff to prove not only the provision of a measurable benefit to a defendant, but also that the defendant impliedly or expressly requested that benefit. The jury erred in awarding Cynthia attorney fees. Remands for further proceedings.

Mark A. Kolish v. State of Indiana
66A03-1009-CR-493
Criminal. Affirms conviction of operating a vehicle with an alcohol concentration of at least 0.15 grams of alcohol per 100 milliliters of his blood as a Class A misdemeanor. The arresting officer adequately informed the magistrate that at the time he submitted the probable cause affidavit, there was a fair probability that Kolish’s blood contained evidence of a crime. The evidence supports a determination that the person who drew Kolish’s blood followed the hospital’s protocol in prepping his arm for the blood draw and that person was authorized to perform the blood draw.

Edward Godby v. State of Indiana
69A01-1009-CR-504
Criminal. Reverses convictions of methamphetamine-related offenses. Godby’s wife did not have authority, actual or apparent, to consent to a search of Godby’s locked box, and the warrantless search of it was impermissible under the Indiana and United States constitutions. Remands for a new trial.

Lawrence Archuleta v. State of Indiana (NFP)
64A03-1008-CR-430
Criminal. Affirms sentence following guilty plea to four counts of Class C felony child molesting and one count of Class B felony child molesting.

Keenan A. Davis v. State of Indiana (NFP)
02A04-1011-CR-740
Criminal. Affirms convictions of Class D felonies possession of a controlled substance and maintaining a common nuisance.

Lloyd Conn v. State of Indiana (NFP)
24A05-1009-CR-608
Criminal. Affirms convictions of Class B felony dealing in methamphetamine and Class D felony dumping controlled substance waste.

Scott Groce v. State of Indiana (NFP)
49A05-1010-CR-637
Criminal. Affirms conviction of Class B felony robbery.

John Mocasque v. State of Indiana (NFP)
22A05-1005-CR-303
Criminal. Affirms conviction of Class C felony battery by means of a deadly weapon.

Ronald Lee Phares v. State of Indiana (NFP)
73A04-1008-CR-523
Criminal. Affirms two convictions of Class A felony dealing in cocaine, but reverses conviction of Class C felony corrupt business influence. Remands for further proceedings.

Kyle Brinkley v. State of Indiana (NFP)
49A05-1010-CR-664
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

David Wayne Bray v. Linda Sue Oberholtzer (NFP)
39A01-1010-DR-528
Domestic relation. Reverses order finding Bray in contempt of court for refusing to make child support payments to Oberholtzer. Remands with instructions and to hold a hearing as to whether Bray is entitled to an award of attorney fees.

Rossando L. McLellan v. State of Indiana (NFP)
02A03-1008-CR-416
Criminal. Affirms convictions of and sentence for three counts of Class D felony theft.

James L. Teague, Jr. v. State of Indiana (NFP)
48A02-1009-CR-1113
Criminal. Affirms conviction of unlawful possession of a firearm by a serious violent felon.

Kristian D. Davis v. State of Indiana (NFP)
79A02-1009-CR-1155
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.

Joan Mazurkiewicz, et al. v. George Hodakowski, M.D., et al. (NFP)
45A03-1008-CT-408
Civil tort. In a medical malpractice action, affirms judgment in favor of Dr. Hodakowski, reverses the grant of Dr. Perelman’s motion for judgment on the evidence, and remands for further proceedings.

Gary E. Masak v. Sherry E. Masak (NFP)
64A03-1011-DR-559
Domestic relation. Affirms equal division of the monies received by Gary as part of the Ford buyout and the equal divisions of other marital assets. Remands to the trial court to correct the errors identified in the opinion, recalculate the marital estate, and divide the property in accordance with its conclusion that an equal division of the martial estate was just and reasonable.

Daniel R. Wallace v. State of Indiana (NFP)
82A01-1009-CR-465
Criminal. Affirms conviction of attempted arson.

Balboa Capital Corporation v. Brad Apple (NFP)
49A02-1101-CC-15
Civil collections. Reverses judgment for Apple on Balboa Capital Corp.’s complaint to domesticate a foreign judgment. Remands for further proceedings.

Term. of Parent-Child Rel. of T.P.; A.P. & T.P. v. I.D.C.S. (NFP)
40A05-1008-JT-723
Juvenile. Affirms termination of parental rights.

Carlos L. Cordova v. State of Indiana (NFP)
17A05-1011-CR-688
Criminal. Affirms sentence following guilty plea to Class D felony sexual misconduct with a minor.

Maria Cabrera v. State of Indiana (NFP)
09A02-1010-CR-1084
Criminal. Affirms Cabrera’s conviction of Class A felony dealing in cocaine. Reverses sentence and remands for the issuance of an order reflecting the revised sentence of 20 years with 10 years suspended to probation.

State of Indiana v. Aaron R. Limburg (NFP)
24A01-1009-CR-454
Criminal. Reverses grant of Limburg’s motion to suppress evidence obtained as the result of a warrantless search of his vehicle.

David Landau v. City of Indianapolis (NFP)
49A02-1011-OV-1249
Local ordinance violation. Affirms finding that Landau violated the animal control ordinance of the city of Indianapolis.

K.S. v. Review Board (NFP)
93A02-1011-EX-1349
Civil. Affirms denial of unemployment benefits.

Marlon D. McKnight v. State of Indiana (NFP)
20A05-1005-CR-357
Criminal. Affirms felony convictions of dealing in cocaine, two as Class A felonies and one as a Class B felony.

Kevin Curry v. State of Indiana (NFP)
20A03-1008-CR-454
Criminal. Affirms convictions of Class C felony corrupt business influence, 15 counts of Class C felony forgery, and being a habitual offender. Remands for clarification of sentence.

Floyd E. Marsh v. State of Indiana (NFP)
48A04-1006-CR-412
Criminal. Affirms denial of motion for relief from judgment.

Richard Keck v. Sate of Indiana (NFP)
36A01-1008-CR-469
Criminal. Affirms sentence following guilty plea to Class D felony battery resulting in serious bodily injury.

M.T., et al.: Alleged to be C.H.I.N.S.; T.J. v. I.D.C.S. (NFP)
49A02-1009-JC-1137
Juvenile. Affirms adjudication of children as children in need of services and dispositional order requiring father to complete services due to that adjudication.

Joe Spiker Excavating Inc. v. Monica M. Rahill and Jo A. Morton (NFP)
67A05-1012-MF-751
Mortgage foreclosure. Affirms holding that Joe Spiker Excavating was bound by the $2,500 price an employee quoted after the company sued a homeowner to foreclose on a mechanic’s lien after the homeowner only paid $2,750 of a $4,019 bill for work performed.

Eugene C. Ziobron v. Streetlinks National Appraisal Services (NFP)
29A05-1007-PL-449
Civil plenary. Dismisses Ziobron’s appeal of the denial of his motion for summary judgment.

Otha Hamilton v. State of Indiana (NFP)
49A02-1009-CR-1021
Criminal. Affirms conviction of and sentence for class A felony child molesting by deviate sexual conduct.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted one transfer and denied 21 cases for the week ending May 27.
 

Opinions May 31, 2011

Indiana Court of Appeals
Dennis Block v. Mark Magura
64A05-1012-PL-752
Civil plenary. Reverses summary judgment for Magura on Block’s lawsuit filed after Magura didn’t complete the purchase of Block’s interest in a partnership. The letter of intent is an enforceable contract because it contains the essential terms of the parties’ agreement and expresses their intent to be bound. Remands for summary judgment in favor of Block as to Magura’s liability for breach of contract and to conduct further proceedings with respect to damages.

Justices bar Arizona lawyer due to advertising rule violations

Out-of-state attorneys have received a fresh warning from the Indiana Supreme Court, one that specifically reiterates that everyone should know this state’s attorney advertising rules when promoting oneself as being “specialized” in a particular area of law or practicing with a “national firm.”

Opinions May 27, 2011 ILD

Indiana Court of Appeals
State of Indiana v. Christopher J. Gill
84A04-1011-CR-812
Criminal. Reverses trial court’s grant of Christopher Gill’s motion to dismiss and remands for further proceedings, stating the victim’s decision to recant testimony is not grounds to dismiss a case.

In re George H. Edwardson Revocable Trust
87A01-1009-TR-501
Trust. Affirms probate court’s denial of motion to dismiss and a motion for judgment on the pleadings, holding that although one beneficiary moved assets to Maine, jurisdiction remains in Indiana.

Michael Bell v. State of Indiana (NFP)
49A02-1010-CR-1134
Criminal. Affirms conviction of Class D felony attempted theft and adjudication as an habitual offender.

Quincy English v. State of Indiana (NFP)
02A03-1009-CR-527
Criminal. Affirms conviction of Class B felony aggravated battery.

Heriberto E. Rivera v. State of Indiana (NFP)
49A02-1010-CR-1142
Criminal. Affirms five child molesting convictions.

Alfred Solomon v. State of Indiana (NFP)
27A02-1005-CR-534
Criminal. Affirms convictions of murder and robbery resulting in serious bodily injury as a Class A felony.

Citron Stovall v. State of Indiana (NFP)
79A04-1008-CR-618
Criminal. Affirms conviction of Class A felony dealing in cocaine.

Robert Paul Baston v. State of Indiana (NFP)
69A01-1008-CR-401
Criminal. Affirms conviction of and sentence for Class A felony child molesting.

Indiana Tax Court had posted no opinions at IL deadline.
 

Court rules on public defender fee imposition

The Indiana Court of Appeals has decided that a state statute’s indigency hearing requirement doesn’t apply when a defendant has entered into a cash bail-bond agreement, meaning a trial court can use that bond money to pay court costs such as the imposed public defender fee.

Hamilton County judge receives public reprimand

The Indiana Supreme Court issued a public reprimand against Hamilton Superior Judge William J. Hughes, the disciplinary sanction stemming from an out-of-state drunk driving arrest.

Opinions May 26, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Alaska Seaboard Partners Limited Partnership v. Gerald Hood, et al.
32A01-1010-MF-546
Mortgage foreclosure. Affirms summary judgment in favor of Hendricks County Bank, the McDonalds, and the Boutots and denial of Alaska Seaboard’s cross-motion for summary judgment in Alaska’s mortgage foreclosure action. Alaska’s foreclosure action is barred by the doctrines of collateral and judicial estoppel. Affirms award of attorney fees to Hendricks County Bank, the McDonalds, and the Boutots.

Term. of Parent-Child Rel. of A.A.; R.A. v. IDCS (NFP)
82A05-1011-JT-730
Juvenile. Affirms involuntary termination of parental rights.

Michelle D. Breedlove v. State of Indiana (NFP)
36A04-1011-CR-755
Criminal. Affirms revocation of probation.

Donald E. Bunting v. State of Indiana (NFP)
65A05-1009-CR-575
Criminal. Affirms convictions of Class A felony dealing in methamphetamine and Class C felony possession of at least three grams of methamphetamine.

Term. of Parent-Child Rel. of J.M., et al.; M.M. v. I.D.C.S. (NFP)
71A05-1010-JT-638
Juvenile. Affirms involuntary termination of parental rights.

Daniel R. Penticuff v. State of Indiana (NFP)
30A01-1101-CR-8
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated and in a manner that endangered a person.

Marlon Snead v. State of Indiana (NFP)
45A03-1010-CR-511
Criminal. Affirms conviction of Class D felony residential entry and remands with instructions to re-sentence Snead.

Douglas McCorkle v. Alesia McCorkle (NFP)
30A01-1009-DR-438
Domestic relation. Reverses custody order and remands for a re-determination of custody.

Dennis Mysliwy v. Teresa Mysliwy (NFP)
45A03-1009-PO-548
Protective order. Affirms issuance of protective order against Dennis Mysliwy.

Elysia B. Souders v. State of Indiana (NFP)
53A04-1008-CR-571
Criminal. Affirms conviction of Class D felony theft.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions May 26, 2011

Indiana Court of Appeals
Jerry French, et al. v. State Farm Fire & Casualty Company
18A02-1005-PL-489
Civil plenary. Affirms the trial court properly denied summary judgment for both parties on the question of whether the insurance policy terms covered the cost of replacing the Frenches’ manufactured home with a stick-built one. Remands with instructions to enter summary judgment in favor of State Farm on the Frenches’ coverage-by-estoppel claim because there is no dispute that coverage exists; to enter summary judgment for the Frenches on the question of reformation of the policy based on mutual mistake of fact and rescission of the policy based on concealment of material facts by the Frenches. Remands for trial on whether State Farm should be liable for the costs of a stick-built home.

Officials weigh-in on ACLU immigration lawsuit

The governor has no comment on a class-action lawsuit filed Wednesday regarding Senate Enrolled Act 590, said Jane Jankowski, spokeswoman for Gov. Mitch Daniels. The suit – filed by the American Civil Liberties Union of Indiana – aims to prevent two components of the immigration legislation from becoming law on July 1.

Southern District lobby hours changing

The lobby hours for the clerk’s offices in the United States District Court and Bankruptcy Court in the Southern District of Indiana will be different beginning July 1. Both clerk’s lobby hours will be 8:30 a.m. to 4:30 p.m. These changes are applicable to all divisions in the Southern District.

Hundreds gather for rally against Indiana Supreme Court ruling

Nearly 300 people gathered on the steps of the Indiana Statehouse Wednesday, many calling for the recall of Indiana Supreme Court Justice Steven H. David. Justice David authored the recent high court ruling that held individuals don’t have the right to resist police who enter their home, even if those entries are illegal.

ACLU of Indiana files suit against immigration legislation

The American Civil Liberties Union of Indiana filed a federal lawsuit Wednesday in the U.S. District Court’s Southern District of Indiana, challenging the wording of a new Indiana law designed to curb illegal immigration.

Opinions May 25, 2011 ILD

The following opinion was posted after IL deadline Tuesday:
7th Circuit Court of Appeals
Roche Diagnostics Corp. v. Medical Automation Systems Inc., et al.
11-1446
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Modifies the District Court’s judgment of allowing the sale of MAS to Alere to proceed by incorporating the 11 hold-separate conditions listed in the 7th Circuit’s opinion. Alere and MAS can close their transaction if they respect those conditions and the District Court’s requirement that Roche receive its unimpaired period of exclusive use of MAS’ diabetes-product software. The District Court issued an injunction implementing its decision and it expires as soon as the arbitrator renders a decision or at the end of 2012 if the arbitrator hasn’t acted.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Clint Cullen v. State of Indiana (NFP)
31A04-1009-CR-626
Criminal. Affirms denial of verified petition for judicial review of alleged refusal to submit to a chemical test.

Paternity of C.C.; M.L. v. J.C. (NFP)
15A01-1009-JP-534
Juvenile. Affirms order modifying physical custody of son in favor of child’s father.

Term. of Parent-Child Rel. of C.S.; C.S. v. I.D.C.S. (NFP)
49A05-1010-JT-719
Juvenile. Affirms termination of parental rights.

Anthony Johnson v. State of Indiana (NFP)
79A02-1010-CR-1439
Criminal. Affirms sentence following guilty plea to Class C felony intimidation while drawing or using a deadly weapon and Class D felony domestic battery in the presence of a child less than 16 years of age.

Joseph Wright v. Aquavalyn Wright (NFP)
45A03-1010-DR-556
Domestic relation. Affirms denial of petition for modification of child support.

Jimmy E. Griffin II v. State of Indiana (NFP)
48A02-1008-CR-919
Criminal. Affirms conviction of and sentence for Class C felony attempted battery and reverses conviction of Class C felony battery.

Otis Allen Tate, Jr. v. State of Indiana (NFP)
71A03-1009-CR-529
Criminal. Affirms conviction of Class B felony burglary.

Keith McClaran, et al. v. Mortgage Electronic Registration Systems, Inc. (NFP)
55A01-1006-MF-289
Mortgage foreclosure. Affirms judgment and grant of foreclosure to MERS as nominee for GMAC Mortgage Corp.

Elliott J. Welch v. State of Indiana (NFP)
49A02-1006-CR-673
Criminal. Affirms conviction of Class D felony theft.

Mark Smith v. State of Indiana (NFP)
43A04-1011-CR-697
Criminal. Affirms sentence following guilty plea to Class D felony operating a vehicle while intoxicated.

Michael Nordman v. State of Indiana (NFP)
85A02-1005-CR-638
Criminal. Affirms conviction of Class C felony intimidation.

Timothy S. Hanna v. State of Indiana (NFP)
29A05-1009-CR-557
Criminal. Affirms convictions of Class B felony criminal deviate conduct and two counts of Class C misdemeanor furnishing alcohol to a minor.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions May 25, 2011

Indiana Court of Appeals
Estate of Bradley Kinser, et al. v. Indiana Insurance Company
29A02-1009-PL-1093
Civil plenary. Reverses summary judgment in favor of Indiana Insurance on its motion for declaratory judgment that it’s not obligated to cover any losses following Bradley Kinser’s accident and death while driving his girlfriend’s car because his policy excluded coverage for a vehicle furnished or available for his regular use. A genuine issue of material fact remains as to the scope and extent that Kinser felt he needed his girlfriend’s permission to drive her car, which affects the determination of whether the car was furnished or available for his regular use.

Issue of fact precludes summary judgment in insurance case

Neither side in a dispute over whether a deceased man’s auto insurer should provide coverage for losses from an accident that occurred while he was driving his girlfriend’s car is entitled to summary judgment, the Indiana Court of Appeals ruled Wednesday. A genuine issue of material fact remains as to whether the girlfriend’s car was furnished or available for the man’s regular use.

Bankruptcy courts amend local rules, seek comment

The United States Bankruptcy Court in the Southern District of Indiana has amended several local rules. In the Northern District, the Bankruptcy Court seeks comment on a proposed rule change.